National Consumer Disputes Redressal
Dy. Chief Officer (Emi), Maharashtra ... vs Bharati D. Wani on 17 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 995 OF 2015 (Against the Order dated 30/04/2015 in Complaint No. 121/2001 of the State Commission Maharashtra) 1. DY. CHIEF OFFICER (EMI), MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY (MHADA) MHADA GRIHA NIRMAN BHAVAN, 1ST FLOOR, BANDRA (EAST) MUMBAI-400051 MAHARASHTRA ...........Appellant(s) Versus 1. BHARATI D. WANI HIG-7/140, SNEHANKOOR CHS LTD., NEW MBH COLONY, GORAI ROAD, MUMBAI-400091 ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. Chirag M.Shroff, Advocate with
Mr. Nikunj Hurrda, Advocate For the Respondent : Mr. Vikas Nautiyal, Advocate with
Respondent in person
Dated : 17 Apr 2018 ORDER
This appeal has been filed by the appellant Dy. Chief Officer (EMI), MHADA against the order dated 30.04.2015 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in Complaint Case No.CC/01/121.
2. Brief facts of the case are that the respondent had purchased a shop in auction by offering Rs.7,60,191/-. The auction was approved and possession letter was also issued by the appellant. After some time the appellant received letter from the respondent that there were certain defects and she was not able to utilise the shop. As no heed was paid by the appellant herein, the consumer complaint was filed before the State Commission bearing No.CC/01/121, wherein the State Commission based on the report of inspection by the Executive Engineer dated 20.4.2002 allowed the complaint vide its order dated 30.04.2015 as under:-
"ORDER Complaint is partly allowed.
Opponent is directed to cure and rectify the defects as pointed out in the Internal Report dated 20/04/2002 of opponent itself within two months.In case of its failure to comply the above direction, the opponent shall pay lumpsum amount of Rs.3 Lakhs with interest @ 9% p.a. from the date of complaint i.e. 27/03/2001 till its realization.
Parties to bear their own costs.
One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
Copies of the order be furnished to the parties."
3. Hence the present appeal.
4. Heard the learned counsel for the parties and perused the record.
5. Learned counsel for the appellant stated that the possession was offered way back in 2002 and the shop was purchased in auction and for commercial purpose, therefore, the respondent was not a consumer within the purview of the Consumer Protection Act 1986. It was further argued that the order of the State Commission is mainly based on the inspection report dated 20.04.2002 of the Executive Engineer of the appellant. There are only minor defects mentioned in the report, however, the State Commission has awarded a compensation of Rs.3,00,000/- along with interest if the repairs are not carried out in two months. Learned counsel further mentioned that the repairs are very minor though the appellant could not make the repairs as the key could not be obtained from the complainant and therefore, the repairs could not be made within time as given by the State Commission, therefore, the appellant is liable to pay Rs.3,00,000/- along with the interest of 9% p.a. It was submitted that the repairs were very minor and cost of Rs.3,00,000/- along with interest was not justified for the same.
6. It was also submitted by the learned counsel for the appellant that the appeal has been filed with delay of 181 days and the delay has happened due to internal procedure of the appellant. The delay is totally inadvertent and unintentional and this delay is not going to cause any prejudice to respondent, if condoned and the matter is decided on merits.
7. Learned counsel further stated that the shop in question has been now demolished by the municipal authorities and therefore, no question of complying with the order of the State Commission arises so far as it relates to the repair of the shop, therefore, the present appeal may be treated as confined to compensation part only.
8. On the other hand learned counsel for the respondent stated that the appellant was in full knowledge of the order of the State Commission. They purposely avoided the repairs to harass the complainant. Therefore, the appellant is fully liable to pay the compensation as ordered by the State Commission along with interest. There is no justification for condoning the delay as this is a huge delay and has been attributed to the internal procedures of the appellant organisation.
9. Learned counsel for the appellant states that in Chief Officer, Nagpur Housing & Area Development Board & Anr. Vs. Shri Gopinath Kawadu Bhagat, RP No.2321 of 2013, decided on 27.09.2013 (NC), delay of 77 days has not been condoned by this Commission. It was further submitted by learned counsel that application for condonation of delay is totally vague and does not give any specific reasons or date and delay cannot be condoned on such vague application. To support his contention, the learned counsel referred to the judgment of Kadam Brothers & Developments Vs. Unmesh Ganpatrao Sathe Sagar Raosaheb Godhare & Anr. (NC), wherein following has been observed:-
"21. Keeping in view the principles of law enunciated in the above judgments, it is to be seen whether sufficient cause has been shown for condonation of the delay or not. The application is absolutely vague and no cogent or sufficient cause has been shown nor any period has been mentioned as to when the Petitioner was ill and what was the period of limitation. The Petitioner did not produce the medical treatment record substantiating the partner's ill health. Only a prescription of his daughter's hospital admission has been filed. It would be pertinent to point out that in the State Commission Petitioner was duly represented by his counsel. Thus, it cannot be said that Petitioner was not aware of the facts. Since, no reasonable explanation has been given, we hold that no sufficient cause nor any cogent reason has been given which entitles the Petitioner to have the delay condoned."
10. Similarly, the learned counsel referred to the case of Savithri Chandrabhan Jaiswansi & her minor children Vs. Dr. D.R. Gurbani & Anr., FA No.252 of 2010, decided on 23.08.2012, where delay of 127 days has not been condoned on the same ground that the application did not specifically mention the required details.
11. On merits learned counsel for the respondent stated that the shop was not in such a condition that it could have been used therefore, the complainant has suffered loss on account of non-fulfilment of the purpose for which the shop was purchased. It was purchased for earning livelihood through self -employment because the same was purchased for teaching in the shop room. Thus, the complainant is fully covered under Explanation attached to Section 2(1)(d) of the Consumer Protection Act 1986.
12. It was submitted by the learned counsel that the deficiencies have been established by the report of the Engineer of the appellant organisation and therefore, this does not require any other evidence to support the case of the complainant. Had the repairs been minor, the appellant/opposite party would have rectified the same. The condition of the shop was so bad that as far back as in 2007, the complainant received a notice of demolition by municipal authority as the shop was treated as unfit for living/wage. Ultimately the shop was demolished by the municipal authority and new shop is being built on that area. It is true that new shop will be allotted to the complainant. However, complainant has suffered loss of livelihood for so many years as well as mental agony and harassment. Therefore, the complainant is fully entitled for compensation awarded by the State Commission.
13. I have carefully considered the arguments advanced by both the parties and examined record. First of all it is seen that the application for condonation of delay has been filed for condonation of 181 days. It is true that this Commission has taken a view in many cases including the ones mentioned by the learned counsel for the respondent/complainant that the delay in such circumstances is not generally condoned, however, the Hon'ble Supreme Court in following cases has taken a view that in appropriate cases delay can be condoned if the balance of justice demands so.
14. Hon'ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others., (2013) 12 SCC 649, wherein the following has been laid down:-
21. From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2 (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
15. The Hon'ble Supreme Court in another judgment N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
16. Based on the above judgments of the Hon'ble Supreme Court, for maintaining the balance of justice and for ensuring that no miscarriage of justice takes place, I deem it appropriate to condone the delay in filing the present appeal in the circumstances mentioned in the application for condonation of delay at a cost of Rs.30,000/- to be paid to the respondent/complainant by the appellant/opposite party.
17. It is true that the appellant may have complied with the order of the State Commission within a period of two months, however they chose not to carry out the repairs. As the cost of the total shop was Rs.7.5 lakhs, there is no doubt that the complainant would have purchased this shop only for earning livelihood through self employment. Therefore, the objection of the appellant cannot be sustained that the complainant was not a consumer.
18. I have perused inspection report of the Engineer dated 20.04.2002 and the following two defects have been mentioned in the report of the Engineer. It has been found that plaster of ceiling at some places came out and rolling shutter of shop is found to be deteriorated and it is found that the said rolling shutter is required to be repaired. In my view the money required for these repairs could not have been more than Rs.1.25 lakhs at that time and the amount of compensation of Rs.3,00,000/- awarded by the State Commission seems to be on a high side.
19. Based on the above discussion, the appeal is partly allowed and the order of the State Commission is modified to the extent that the opposite party/appellant shall pay a compensation of Rs.1,25,000/- (Rupees one lakhs twenty five thousand only) instead of Rs.3,00,000/- as awarded by the State Commission along with 9% p.a. interest as ordered by the State Commission. The appellant/opposite party shall also pay Rs.30,000/- to the respondent for condonation of delay in filing the appeal by the appellant. This order shall be complied within a period of 45 days, failing which additional interest of 3% p.a. shall be payable by the appellant/opposite party from the date of this order till actual payment.
20. No order as to costs for this appeal.
...................... PREM NARAIN PRESIDING MEMBER